Talking Dog Interview, November 20, 2008

Talking Dog Blog Interview with Buz EisenbergNovember 20, 2008

Buz Eisenberg
is an attorney "of counsel" to the firm of Weinberg & Garber, P.C.,
in Northampton, Mass. and is a professor of constitutional law and
criminal justice at Greenfield Community College in Greenfield, Mass.
Mr. Eisenberg represents four current or former detainess at Guantanamo
Bay, Cuba. On November 3, 2008, I had the privilege of interviewing Mr.
Eisenberg by telephone. What follows are my interview notes, corrected
as appropriate by Mr. Eisenberg.

The Talking Dog: My customary first question is, where were you on 11 Sept. 2001?

Buz Eisenberg: On September 11th I was teaching a
constitutional law course. As I left the classroom, a colleague, David,
saw me and stopped. David is a pilot with his own small aircraft with
whom I had flown on occasion, so we have discussed the safety and the
dangers inherent in flying. He asked “did you hear, apparently a small
aircraft crashed into one of the world trade towers in Manhattan?” He
obviously had very little information at that point (it was maybe 9:30am.) I then went to the Behavioral Sciences office to get my mail, where the Dean, Kate, was, frantically yet fruitlessly, trying to get her sister on her cell-phone. Her sister worked in that tower. It turned out that morning was the rare occasion in which she was late for work, having stopped for coffee and a pastry and encountered a long line, which Kate didn’t learn until much later in the morning. I learned in the ensuing days that one of my clients perished on American
Airlines Flight #11, and I had two other acquaintances who died in New
York City that morning.

The Talking Dog: Please identify your Guantanamo Bay based clients, by name, nationality, current location (such as "Camp 6, GTMO", "repatriated to Algeria" or whatever applies), and any personal details about them that my readers should know, whether of family, personality or anything else (including whether your clients claim to have suffered abuse at GTMO, Bagram or elsewhere while in American custody). Also, have any of your clients remaining at GTMO been "cleared for release" or "designated for commissions"?

Buz Eisenberg: My four clients are:

(1) Abdul-Salam Gaithan Mureef Al-Shihry; Saudi Arabian; repatriated
to the Kingdom of Saudi Arabia in June of 2006. He was one of the
younger detainees (17 at time he was taken into custody.) His
litigation remains active in order to erase the “enemy combatant” stain.
The Government contends that it is mooted by transfer, and that the
court now lacks jurisdiction.

(2) Farhi Saeed bin Mohammed; Algerian; Camp 6, GTMO. He has been
cleared for release or transfer on 2007 as a result of a February
Adminstrative Review Board (ARB).

(3) Mohammed Abdal Al Qadir; Algerian; transferred to the control of Algeria on 8-26-08. His litigation also remains active in order to erase the “enemy combatant" stain. The Government also contends that his habeas
claim was mooted by transfer, and that the court now lacks jurisdiction.

All of these men are the victims of abuse while at Guantanamo. Without violating the Protective Order, I can say that the holding of someone
in virtual isolation indefinitely, without charges or reason for hope,
by definition amounts to “abuse.” Physicians for Human Rights published a study that concluded that it meets every medical definition of “torture” per se.

The Talking Dog: As best you can from publicly available data including CSRT reports, what is it the United States government
contends your clients did to warrant their continued detention?

Buz Eisenberg: The answer to that question is "nothing". All
four were alleged to have been in places where they could have been
sold for a bounty, and evidently were. We have not yet seen classified
habeas returns (though they are technically not yet due under Judge
Hogan's rolling order requiring the government to prepare 50 habeas
returns per month.)

The Talking Dog: Can you tell me the current status of your clients' litigations (habeas proceedings, DTA petitions, appeals,
etc.), and how has this status changed since the Supreme Court's Boumediene
decision, and do you anticipate any resolution of this from the courts,
either (1) ever, or (2) during the remainder of the Bush Administration?

Buz Eisenberg: All four men have habeas petitions pending.
All four have had one or more Orders appealed by the government.
Because many of these matters are under seal I cannot describe them in
any more detail. Two of my four clients, al-Qadir and Al-Shahiri, as
noted above, have been transferred. We have argued that their cases are
not mooted by the transfers, because of the collateral consequences
doctrine, and clearly, their designation as "enemy combatants" triggers
liberty interests and the law is clear on this. We only filed one DTA
petition, with Al-Qadir, who is now in Algeria; nothing has been done
with his DTA petition, which has been held in abeyance at the moment as
he has been transferred, but the intent is to remove the enemy
combatant stain through the DTA petition if possible, although as you
know, the DTA has been held not to be an adequate habeas substitute in
the Boumediene case.

Judge Hogan's order placed everyone transferred or "cleared for
release" at the back of the line for release of classified habeas
returns. We are still arguing about that, but the arguments are under
seal; we have not conceded that point. Our arguments are especially
compelling when the detainee was transferred to a hostile country. It
is horrific to have to play the interests of our clients against each
other with respect to arguing for the court's attention, but that's the
position we are in. Of my own clients, as noted, two have been
released, and a third, bin Mohammed, has been cleared for release.

I am ever the Pollyanna, and notwithstanding this being my fourth year
of this litigation, I am still hopeful that we will have habeas review
for these men. I am not hopeful that it will occur during the remainder
of this Administration, though I am hopeful that Boumediene
will apply, notwithstanding that its tenets that the delay has already
gone on too long will be honored by the lower courts (the only
exception being Judge Urbina's decision in the Uighurs' case, which
ordered an immediate release only to be stayed by the Circuit Court). I
believe that the law and facts will ultimately work in favor of most of
the detainees; there are only 250 left or so, and though their day in
court will come far too late, it will come.

The Talking Dog: Anything more you can tell us about your clients' specific situations?

Buz Eisenberg: One of my clients suffers from a horrible
disease that has only manifested itself at Guantanamo. It is pilagra, a
Medieval malabsorption disorder, whereby the body can't absorb niacin.
It manifests itself in a skin condition with skin flaking off and
pustules and terrible itching. It's quite painful even to look at. We
have tried to evaluate it with Physicians for Human Rights to get him
some treatment, only three weeks ago I last saw him, and it has
manifested again; we remain concerned with this and are trying to get
him adequate medical care.

Another of my clients has serious psychological issues deteriorating by his confinement.

As to my 2 transferred clients, I haven't seen them since their
transfer. I haven't seen al-Qadir since July. I haven't seen Al-Shahiri
since his transfer to Saudi Arabia in 2006; none of the 116 Saudi
released detainees are allowed to speak to their habeas counsel so we
have to rely on anecdotal evidence from a closed kingdom.

As noted, all of my clients have had to deal with unthinkable abuse.

The Talking Dog: How has work on Guantanamo litigation affected you professionally, including how it has affected the rest of your law practice (and did the Cully Stimson led attack on habeas lawyers have any specific effect), and how has it affected you personally?

Buz Eisenberg: I am a teacher, who supplements my income with
a law practice. Since I've been doing this, my teaching load has been
reduced to 3/4, and my law practice has dried up to nothing. I do not
regret this for one second. This is what the oath requires, and I am
grateful for the opportunity to do it. At some points, it has caused
heartbreak and disappointment to have been in the throes of our
post-Constitutional era, under which the judicial branch has been all
too compliant in helping to dismember the fundamental underpinnings of
our democratic republic.

As we talk on the eve of the election [Barack Obama has been elected in
the interim], I remain ever the Pollyanna, hopeful that the rule of
law, both domestic and international law, are about to become
resurgent. If our system can weather this storm at this time, maybe the
events of the last few years will strengthen it and some good will have
come out of all this.

The Talking Dog: As of now, it looks like (my college classmate) Barack Obama is going to be the next President. What do you anticipate (if anything!) in an Obama Administration with respect to GTMO issues (e.g. close GTMO, move a few detainees here for trial, release the rest? Something else?) In the seemingly unlikely event of a President McCain, where do you anticipate these issues going?

Buz Eisenberg: As to the simple question of "closing
Guantanamo", that's just geography... yes, it's more convenient to fly
to Leavenworth than to Cuba, but so what?

The Talking Dog: Though of course, as the case of the Uighurs
shows, there might be some significant difference if the detainees are
"admitted to the United States".... if they actually are, is there not?

Buz Eisenberg: To be sure, the judicial branch is grappling
with that very question in the Qiemba (Uighurs) appeal; the government
must show cause as to why the detainees were not released inside the
United States, and the government moved to stay it, and doubtless there
will be en banc review of that stay.

The reality remains that all we want-- all we have ever asked-- is that
the detainees get a hearing. If they get a fair trial with due process,
they will have had their day in court, come what may.

I'm sure that Obama's attorney general would say "we can't completely
discount the CIA and military's conclusions that we are holding some
bad guys", but I hope, certainly, that an Obama Justice Department
stops the endless delay, and then we will see a difference in that
area. Right now, 61 men have been cleared for release (59 actually as 2
have recently been transferred.) I don't see those numbers going up. I
anticipate an Obama DOJ saying "let's try these cases, come what may."

As to McCain [who has been defeated since the telephone interview], he called Boumediene
the worst case in the history of Supreme Court jurisprudence, and I'm
sure that his Justice Department would have responded accordingly, and
although I'm sure he wouldn't tolerate torture (other than the endless
delay and uncertainty itself, which is itself a form of torture), he
would not do much differently from the Bush Administration.

The Talking Dog: From the context of a criminal justice professor, or a legal practitioner, or any other way you'd like to talk about it, how similar, or different, is the Guantanamo litigation with respect to the rest of your experience, and why? Did you have an expectation of this when you got into it, and how did you get into it?

Buz Eisenberg: I live in rural Western Massachusetts. In my
29 years of litigation practice, I have been before judges who see the
world differently from I do, or encountered probation or police
officers offering less leniency than I think they should be at times.
But everybody respects the law (with few exceptions). I could be a
little naive, everyone tries to do the right things under a
Constitutional framework. Indeed, the job descriptions require
following a civilized society's protocols.

To see the Department of Justice being so callous to principles that
they took an oath to protect and defend, led by the attorney general
himself in this regard, is just disheartening. We knew this was the
case when we got involved in the GTMO litigation of course. I fancied
myself as bringing the Constitution to Guantanamo, when I called the Center for Constitutional Rights
and asked to be assigned a client. Some of our basic assumptions don't
seem to be relevant in these people's radar screens, and this is
extremely chilling.

We have had what amounts to a legal coup d'etat-- we had always
thought that the people would never allow anything like this, but the
guys with the guns are operating off of different principles.

I have been an ACLU cooperating attorney for 26 years. Relatively small
complaints get funneled to me in my county. I had a naivete about a
police state and whether it could be imposed here, in our
representative democracy. My eyes have been opened, as we have slid
into it.

I am so proud of my colleagues in this, and in human rights movements
here and abroad, who have taken on this work. As someone who teaches
constitutional law, it has been a privilege to have a chance to fight
and work for something meaningful, though on the whole, it has been
chilling.

The Talking Dog: Can you comment on media coverage-- local, national, international-- on these issues?

Buz Eisenberg: Before I was involved in the Guantanamo
litigation myself, I was far more likely to condemn the media for their
lack of interest, (and I still do to some extent.) The media always
seems more focused on celebrity or sensationalist angles, be it Lacey
Peterson or Anna Nicole's baby or O.J.... those are always likely to
garner more media interest.

Some journalists, notably Carol Rosenberg of the Miami Herald, have been remarkably strong in their coverage of Guantanamo. The New York Times, for example, in a recent article by William Glaberson and Margot Williams,
discussed Guantanamo and the challenge faced by the next President, and
its coverage has also been strong. But these are exceptions.

We have to acknowledge that the media makes coverage decisions based on
what it thinks people want to read; even quite progressive people have
a limited tolerance for reading the gory details about Guantanamo. And
given all the other news crying out for attention, one sees the limits
of coverage of these issues.

Still and all, since I began working on the Guantanamo litigation, I have paid more attention. Eric Freedman and Candace Gorman
and Sabin Willet often float news stories to each other, sometimes on a
daily basis, for the last several years, and the Arab news and European
media outlets have certainly covered this; there is a ton of publicity
about this out there in the world media, even if not regularly found in
the Boston Globe or my Sunday New York Times. I'm not
talking about the MSNBCs, but certainly, the puff commercial media has
not focused on this, though it creates a vicious cycle of creating
interest in the celebrity and sensationalist matter and then feeding
that interest.

The Talking Dog: Can you comment on the Al-Bahlul show trial and
do you have a comment on the recent Al-Bahlul show trial and show
conviction and life sentence? Do you have any broader comment on
whether you ever thought that you would see the U.S. government stage
anything quite like this?

Buz Eisenberg: Well, no. Certainly none of us ever expected
to see the American government engage in anything like this. It leaves
you feeling deceived, that your system, that was always rule-based,
could devolve to this. I consider myself a highly spiritual person (if
not a religious one). When your system of justice is subverted and
fails, it us hurtful. My adult life has been devoted to this system,
but it has already failed us all.

The Talking Dog: Is there anything else I should have asked you but didn't, or anything else that my readers need to know about this subject?

Buz Eisenberg: I have been saying, since I heard my colleague
John Holland of Denver refer to our time as "the post-Constitutional
era", that I realized he is exactly right: we are in a
post-Constitutional era. If this period only lasts the seven years it
has so far, I'll be quite relieved.

But that is where we now reside. Yes, Boumediene
put a chink in that, but it has not yet, at least, been implemented by
the lower courts. My hope is that we can restore our nation to a
Constitutional status that had been self-defining since the founding of
the Republic, but which has gone off track. I believe Sabin Willet has
said it as succinctly as can be said in his letter, below [see here].